Law & Principles

Millions in McGirt legal costs expected

May 19, 2021

Ray Carter

The fallout from a U.S. Supreme Court ruling that declared a tribal reservation was never disestablished in Oklahoma has now led lawmakers to create a new fund to cover millions of dollars in anticipated state legal expenses.

“There will have to be a case that goes through the system that resolves the questions around McGirt,” said House Appropriations and Budget Chairman Kevin Wallace, R-Wellston. “The ruling said it was for major crimes and who had jurisdiction over major crimes. There’s a whole bunch of spinoff of uncertainty and unknown questions that still need to be answered that will take litigation to resolve.”

In McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee Nation’s reservation was never disestablished. While the ruling applied only to Muscogee Nation land and questions of criminal prosecution under the federal Major Crimes Act, its precedent and basis are expected to result in application to numerous other issues, such as taxation and regulation, and also include the land of at least four other tribes—the Choctaw, Chickasaw, Cherokee, and Seminole nations—whose combined territory includes most of eastern Oklahoma. Subsequent court rulings have steadily expanded the decision’s reach as expected.

Wallace said the state is already dealing with cases where individuals or entities have claimed they do not owe state taxes because of the ruling.

While the attorney general represents state government in most cases, Wallace noted the state also contracts with private attorneys on cases that involve great complexity and specialization.

House Bill 2951 would create a new “State-Tribal Litigation Revolving Fund” within the Office of Management and Enterprise Services “for the purpose of hiring legal counsel and paying legal expenses of the State related to legal controversies between the State of Oklahoma and tribal governments.”

Under the bill, all expenditures from the fund would have to be authorized by the legislative Joint Committee on State-Tribal Relations.

Lawmakers are expected to deposit $10 million into the fund this year.

Rep. Merleyn Bell, D-Norman, suggested that may be only the tip of the financial iceberg, saying she wondered “if $10 million will be enough, based on how much we spent in the past.”

“Do you feel that this is just sort of a drop in the bucket, or will we need to be adding more money to this fund in the future?” Bell asked.

“Only time will tell,” Wallace responded.

House Minority Leader Emily Virgin, D-Norman, urged lawmakers to oppose the bill, saying it could pay for legal counsel in state-tribal disputes other than McGirt-related conflicts, such as disputes over state-tribal compacts on gaming or tobacco.

“While we’re being told that this bill does one thing, the consequences could be much greater,” Virgin said.

HB 2951 passed the Oklahoma House of Representatives on an 80-18 vote that broke along party lines with Republicans in support. The bill now proceeds to the Oklahoma Senate.